Obama’s Illegal War in Libya?

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President Obama on March 21 formally alerted Congress about the U.S. military engagement in Libya. Unless they were living under a rock, every member of Congress was well aware by that time of the air attacks against Libya’s Col. Moammar Gadhafi, which had been underway for two days by that date. But by law, Obama had to alert Congress in a formal manner. “I am providing this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution,” Obama wrote.

The 1973 War Powers Resolution doesn’t only require the President to report military action to Congress when that branch of government has not declared war. It also requires that without that congressional declaration, the president must “terminate any use of United States Armed Forces” within 60 days. That means get out of Libya by Friday, May 20. (The law gives the president 30 days to conduct a withdrawal).

Nobody seems to think that is going to happen. Some attorneys argue that without action by Congress, President Obama’s war with Libya is soon going to be illegal.

Yale law professors Bruce Ackerman and Oona Hathaway made this argument in a Washington Post editorial today.

 Why, then, hasn’t the president been pressing Congress to approve the war before the looming deadline? Because it’s easier to paper over the problem with new legal fictions pretending that the time limit doesn’t apply to this instance. By Friday, the administration’s legal team is likely to announce that the clock stopped ticking on April 1 — the date when NATO “took the lead” in the bombing campaign. Since NATO is running the show, the argument will go, the War Powers Act no longer applies, and the president doesn’t have to go back to Congress after all.

But American planes and drones continued their bombing long after the April turnover — and the drones are still flying over Libya. Since the cost of the mission is at three-quarters of a billion dollars and climbing, it is sheer fiction to suggest that we are no longer a vital player in NATO’s “Operation Unified Protector.”

I asked the White House’s Tommy Vietor to respond to this argument but he did not return my email.

Congress has responded with a shrug to the White House ignoring their resolution. Foreign Policy reported earlier this month that Sen. John Kerry and Sen. John McCain had fiddled around with some draft language authorizing the war in Libya before shelving the idea. Indiana Republican Sen. Richard Lugar told Foreign Policy that the president might be in violation of the law after Friday and that he would “examine” the issue.

Congress passed the resolution in 1973 during the hangover from Vietnam with the idea of preventing the president from unilaterally drifting into another prolonged military quagmire. There has long been a debate about whether the law tramples on the president’s authority as Commander in Chief with sole authority over U.S. forces engaged in war – after Congress declares it.